Green Restitution Order Stands … For Now

Given the general lack of FCPA caselaw, anytime a court - let alone an appellate court - issues a decision that contains the words “Foreign Corrupt Practices Act,” it is a notable event even if the decision does not directly deal with FCPA issues.

As highlighted in this previous post, in September 2009 Gerald and Patricia Green were found guilty by a federal jury of substantive FCPA violations, conspiracy to violate the FCPA, and other charges in connection with a bribery scheme involving film festival contracts in Thailand. As noted here, the judge rejected the DOJ’s 10 year sentencing recommendation and sentenced the Greens to six months in prison, three years’ supervised release and $250,000 in restitution.

On appeal to the Ninth Circuit, the Greens argued that the trial court violated the Supreme Court’s holding in Apprendi (that the Sixth Amendment reserves to juries the determination of any fact, other than the fact of a prior conviction, that increases a criminal defendant’s maximum potential sentence ) “when it ordered them to pay restitution without a jury’s finding that there was ‘an identifiable victim or victims’ who suffered a ‘pecuniary loss.’”

This recent 9th Circuit opinion concerned the Greens’ appeal of the restitution order.

In a colorful, seemingly apologetic, opinion authored by Judge Alex Kozinski, the court acknowledged that the Supreme Court has “yet to hold whether Apprendi applies to restitution.”

On the other hand, the opinion states that the Ninth Circuit “has categorically held that Apprendi and it progeny don’t apply to restitution.”

On the other hand, the opinion states that the Supreme Court’s 2012 decision in Southern Union provides reason to believe that Apprendi might apply to restitution. (As noted in this previous post, Southern Union held that Apprendi applies to the imposition of criminal fines).

One the other hand, the opinion states that Southern Union’s “strong signals aren’t enough” for a “three-judge panel to overrule circuit precedent.”

In conclusion, the court held as follows.

“Our precedents are clear that Apprendi doesn’t apply to restitution, but that doesn’t mean our caselaw’s well-harmonized with Southern Union. Had Southern Union come down before our cases, those cases might have come out differently. Nonetheless, our panel can’t base its decision on what the law might have been. Such rewriting of doctrine is the sole province of the court sitting en banc. Faced with the question whether Southern Union has ‘undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable,’ we can answer only: No.”

Given the above language, the next step on this issue would seem to be obvious.

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An interesting topic of late is whether FCPA violations result in victims. On this issue, the Ninth Circuit stated that FCPA convictions do not “necessarily imply a victim or a loss.”